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Hale v. First Nat'l Bk. of Mt. Prospect

OPINION FILED JANUARY 17, 1978.

CURTIS B. HALE ET AL., PLAINTIFFS-APPELLANTS,

v.

FIRST NATIONAL BANK OF MOUNT PROSPECT ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Twelve property owners of Prospect Heights, Illinois (plaintiffs) appeal from the trial court's dismissal of their complaint for administrative review. (Ill. Rev. Stat. 1975, ch. 110, par. 276.) Plaintiffs had sought administrative review of a decision of the Zoning Board of Appeals of Cook County (Board) which had granted a zoning variation to Richard P. Schuld and William P. Esser (applicants). Plaintiffs contend in this appeal that: (1) the Board exceeded its authority by allowing the applicants to subdivide their property; (2) the decision of the Board is contrary to the manifest weight of the evidence; and (3) the Board denied plaintiffs due process of law by failure to conduct a hearing on the issue of plaintiffs' lack of notification as to a particular Board meeting.

While this case was pending before this court, the City of Prospect Heights (City) sought by leave of court to file a brief amicus curiae. In accordance with Supreme Court Rule 345 (Ill. Rev. Stat. 1975, ch. 110A, par. 345), the City's motion stated it wished to make known its views because the action taken by the Board and the court below affects both the residents and the plan of development of the City. As the property in question now lies wholly within the City's corporate limits, and the Board's action took place after the City's incorporation but before the installation of its officers, we granted the City's request. Thus, the City in its amicus brief contends that the Board exceeded its authority in allowing the applicants to effectively resubdivide the subject property.

The 1 1/4 acres in question are located on the northwest corner of Marion Avenue and Pine Street in Wheeling Township. The property consists of two lots each with a depth of 315 feet; the width of one lot is 67 feet, the other is 100 feet. In the district for which the property was zoned, there was a requirement of a 100-foot minimum lot width with a 20,000-squarefoot minimum area per lot. By their application for a variation, the applicants sought to reduce lot area requirements from 20,000 square feet to 17,787 square feet. They planned to create three parcels for single-family residences. Due to the property's dimensions, the applicants were faced with several alternatives. If two lots on Pince Street were created, one or both of the lots would have less than the required 100-foot frontage. If three lots on Marion Avenue were created, each lot would have 105-foot frontage. Lastly, if two lots on Marion Avenue were created, each lot would have approximately 155-foot frontage. At the time of the application for a variation and the public hearing, the property was located in the unincorporated area of Cook County.

When the Board conducted a public hearing on the matter of the application, the Prospect Heights Improvement Association (PHIA) and numerous homeowners in the area appeared in opposition. The vice president of PHIA presented a letter which summarized the organization's objections to the application in that the lack of an access street would create a problem in delivering fire protection, and that the residents most affected by the development did not want it. The individual homeowners and PHIA emphasized that area residents had purchased their property in reliance on their belief that the community would be developed in a certain manner.

Although the public hearing for a variation was conducted on January 7, 1976, the Board postponed a decision pending the outcome of a referendum on January 31, 1976. The referendum concerned the incorporation of an area into the City. As the result of the vote on the referendum, the subject property, on May 25, 1976, was incorporated into the City. On March 30, 1976, the Honorable Harry Comerford, Judge of the Circuit Court, County Division (which had jurisdiction of the incorporation proceeding) by letter informed the Board's chairman that the court, on March 8, 1976, entered an order to the effect that Cook County had continuing jurisdiction to administer its zoning ordinance in Prospect Heights until the City's officers were elected and installed.

Thereafter the Board announced its decision, noting plaintiffs' objections to the application as follows: (1) it would be out of character with the neighborhood; (2) it would set a bad precedent; and (3) there would be inadequate access to the property to provide fire protection. After examining each of these contentions, the Board granted the variation. Plaintiffs then filed a complaint for administrative review, which was dismissed by the trial court upon its finding that the Board's decision was not against the manifest weight of the evidence.

I.

• 1, 2 The findings and conclusions of an administrative agency on questions of fact are prima facie true and correct. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) Based on our review of the record, the Board's decision was not against the manifest weight of the evidence. On administrative review, the court's function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence. (DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 489, 202 N.E.2d 522; Wolbach v. Zoning Board of Appeals (1st Dist. 1967), 82 Ill. App.2d 288, 296, 226 N.E.2d 679.) If there is substantial competent evidence to support an agency's action, the court will not disturb the agency's decision. (Karasik v. City of Highland Park (2d Dist. 1970), 130 Ill. App.2d 566, 572, 264 N.E.2d 215.) Thus, a court will neither substitute its judgment for that of an administrative agency, nor overturn administrative findings unless they are without substantial foundation in the record. (Bayer v. Zoning Board of Appeals (1st Dist. 1970), 126 Ill. App.2d 374, 377, 261 N.E.2d 791.) In granting the applicants a variation in this case, the Board stated its findings, based upon the evidence presented to it, as to each of the seven standards enumerated in section 13.73 of the Cook County Zoning Ordinance (former section 6.6c). The findings in the case at bar specified the Board's reasons for granting the variation. The findings did more than merely parrot the generalized standards of the ordinance. Cf. Lindburg v. Zoning Board of Appeals (1956), 8 Ill.2d 254, 256, 133 N.E.2d 266; Harber v. Board of Appeals (1st Dist. 1967), 84 Ill. App.2d 94, 97, 228 N.E.2d 152; Blair v. Zoning Board of Appeals (1st Dist. 1967), 84 Ill. App.2d 159, 163, 228 N.E.2d 555.

In summary, the Board found that to require development of the property as presently subdivided would impose a hardship; that the conditions on which the variation is based are unique to the property; that the variation will create regular-sized buildable lots; that the hardship was created by the ordinance which required a minimum of 20,000 square feet per lot; that the variation would not be detrimental to the public welfare, or would not be injurious to other property or improvements in the neighborhood; that the variation would not impair an adequate supply of light and air to adjacent property; and that the variation conferred no special privilege on the applicants.

• 3, 4 To be entitled to a variation, the applicants had to satisfy all of the requirements stated in the ordinance. (Reichard v. Zoning Board of Appeals (1st Dist. 1972), 8 Ill. App.3d 374, 381, 290 N.E.2d 349; Asbach v. Zoning Board of Appeals (1st Dist. 1971), 133 Ill. App.2d 22, 24, 270 N.E.2d 535.) The Board found that the applicants met such requirements. Upon administrative review, the trial court was authorized to examine the Board's findings to determine if they were supported by competent evidence. (Roosevelt Memorial Hospital v. Chaddick (1st Dist. 1970), 131 Ill. App.2d 82, 87, 266 N.E.2d 755; St. James Temple v. Board of Appeals (1st Dist. 1968), 100 Ill. App.2d 302, 309, 241 N.E.2d 525.) We think the Board's decision was not against the manifest weight of the evidence. In our opinion, the trial court properly dismissed plaintiffs' complaint.

II.

Plaintiffs and the amicus claim that the Board exceeded its authority by allowing the applicants to subdivide or resubdivide their property. We note for the sake of clarity that while plaintiffs and Cook County use the term "subdivision," the amicus uses the term "resubdivision." As the word of art "resubdivision" is the more accurate of the two, we will hereinafter use that word in our discussion. Plaintiff and the City contend that the applicants requested a variation from the lot size requirement, and that the Board went further and improperly allowed a resubdivision by creating three lots from two existing lots. As section 13.74 of the 1976 Cook County Zoning Ordinance (former section 6.6d) sets forth the instances in which variations may be granted and resubdivision is not among them, plaintiffs and the amicus conclude that the Board exceeded its authority. They contend that the applicants failed to follow the proper procedure; that is, to seek a resubdivision from the Board of Commissioners of Cook County either before, simultaneously with, or after the application to the Board. The Cook County Subdivision Manual, dated April 18, 1961, specifies that the final power to resubdivide lots is with the Board of Commissioners.

• 5 Pursuant to section 11 of the Administrative Review Act, the trial court was authorized to determine all questions of law and of fact presented by the entire record. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) Further, only questions raised before the Board were to be considered. (Vasilopoulos v. Zoning Board of Appeals (1st Dist. 1975), 34 Ill. App.3d 480, 483, 340 N.E.2d 19.) Plaintiffs never raised the resubdivision issue before the Board in their amended complaint for administrative review or at the hearing before the court. Yet plaintiffs argue that due to circumstances of the case, the issue could not have been ...


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